The Special NDPS Court in Mumbai today heard the bail applications of Aryan Khan, Arbaaz Merchant, and Munmun Dhamecha, who are under custody since their arrest in the cruise ship drug case in October 3.
Special Judge VV Patil will continue the bail hearing tomorrow.
The Narcotics Control Bureau detained and subsequently arrested Aryan Khan, Arbaaz Merchant, and Munmun Dhamecha on October 3, after six and five grams of charas were allegedly seized from Merchant and Dhamecha respectively.
Senior Advocate Amit Desai appearing for Aryan Khan argued that there has been no recovery from Khan and the maximum case against him is the admission of consumption.
“None of the recoveries mentioned in the panchnama was from Aryan. If he did not have cash, he had no plans to purchase. If he had no substance, he wasn’t going to sell or consume,” Desai submitted.
The NCB on the other hand alleged that Khan is involved in the illicit “procurement and distribution” of contraband, and further he was in touch with some persons abroad who appear to be a part of an International Drug Network for illicit procurement.
However, Desai maintained that Khan has no connection with the co-accused.
Background
All three, Aryan, Arbaz, and Munmun were booked under sections 8(c) read with 20b (purchase), 27 (consumption), 28 (attempt to commit offense), 29 (abetment/ conspiracy), and 35 (presumption of culpable mental state) of the NDPS Act.
They approached the special court after a magistrate’s court rejected his bail application on the grounds that it was not maintainable.
In his bail plea, Khan argued that no contraband was found on him, and at most the allegations against him would attract a one-year jail term. Moreover, the embargo for bail under section 37 of the NDPS Act would not apply as no recoveries were made from him and all the allegations pertain only to small quantities.
He also stated that ‘the prosecution is relying solely upon certain alleged WhatsApp chats to entangle him in the present proceedings, without the veracity or accuracy of the chats being established.’
The NCB, on the other hand, claimed that there is prima facie sufficient material in form of WhatsApp chats, pictures, etc to show that Khan was an active part of the illicit drug chain with other co-accused persons.
Allegations of illicit drug trade against Aryan Khan are baseless: Sr Adv Desai
Desai argued that all the information that is coming in this investigation is about other accused. However, an impression is being tried to create that there is a connection between Aryan and the other accused.
“They just arrest anyone and then say one is a supplier, financier and then apply conspiracy.“
He also opposed the allegation leveled by NCB that Khan is part of an illicit drug chain and highlighted that the agency has yet not invoked Section 27A against him, which relates to illicit traffic, as it is aware that is not involved in any illicit trafficking.
“This is a very serious term that they have dumped on Aryan Khan. I have no doubt that my friends know what is illicit trafficking according to the NDPS Act means…This boy had nothing, he was not even on the vessel. It is an absurd and false allegation.“
Charges against Aryan Khan not sustainable: Sr Adv Desai
Significantly, Aryan is booked under sections 8(c) read with 20b (purchase), 27 (consumption), 28 (attempt to commit offence), 29 (abetment/ conspiracy) and 35 (presumption of culpable mental state) of the NDPS Act,
Desai argued that Section 20b would not apply because there is no possession. Section 28 would also have no application since Aryan was picked up at the gangway and thus, in law, there was no attempt. Section 29 would also not apply since only Aryan and Arbaaz were together, thus there was no indication of conspiracy.
He further stated that the charge of Section 27 has been invoked on the basis of a “so-called confessional statement” recorded under section 67 NDPS Act.
They are young kids, not peddlers: Sr Adv Desai
Appealing to the Court’s conscience, Desai submitted,
“We as a country have moved into a reformative state. Where earlier the punishment for consumption was five years has been brought down to one year in 2001. Following a UN convention, many countries removed cannabis from the schedule of dangerous drugs.
They are some young kids. In many countries these substances are legal. Let us not penalize in bail. Let us not make it worse for them. They have suffered enough, they have learned their lesson, if at all. They are not peddlers, racketeers, or traffickers.“
NCB can’t rely on accused’ WhatsApp chats due to non-seizure of mobiles: Adv Sayed for Arbaaz
Advocate Tariq Sayed appearing for Arbaaz Merchant argued that none of the WhatsApp chats can be looked into by the NCB because there is no seizure panchnama for the mobile phones.
He stated that when the accused were apprehended if no phones were found on them, where is the question of looking into the chats.
“Then the only thing is the alleged recovery…The only thing is, what is found on me and where I got it from, and that part of their investigation is complete. It is not even their case that all applicants (Arbaaz and Khan) were together.“
Munmun Dhamecha detained only to show the arrest of ‘ordinary people’: Adv Kashif
Advocate Ali Kashif appearing for Munmun Dhamecha argued that she has been made a scapegoat by the NCB only to show that ordinary people have also been arrested in the case, apart from high profile names.
It was argued that Munmum deserves to be released on bail given the fact that no recovery has been made from her and that the NCB has been unable to show her connection with other co-accused.
“I was invited as a guest by Mr. Baldev. If contraband is found in the room, he should be questioned…The rolling paper was recovered from Somiya, but she was allowed to go…I am behind bars just to give NCB a strong ground against Aryan and Arbaaz, that ordinary people have also been arrested. I am struggling the most,” Kashiff submitted.
Contraband involved of ‘small quantity: Adv Kashiff
Kashiff also contended that even the panchnama says that the alleged drug was found in the small desk, and there were two more people in the room.
“What they are trying to show is small quantities are equivalent to commercial quantities,” he submitted.
Reliance was placed on Amar Singh Ramjibhai Barot v. the State Of Gujarat, where the Supreme Court observed that punishment is graded according to whether the contravention involved small quantity, commercial quantity or a quantity in between the two.
Aryan Khan was in conscious possession of drugs: ASG Singh for NCB
Additional Solicitor General Anil Singh appearing for NCB submitted that though no recovery was made from Aryan Khan’s person, he was in “conscious possession” of the contraband.
He stated,
“The applicant No. 1 (Aryan) and A2 (Arbaaz) met at A1’s residence and they know each other for 8-10 years. The panchnama says that the contraband (6gms with Arbaaz) was for their consumption… and Khan knew of the possession. Therefore, as per the law, this would amount to conscious possession.“
Quantity of recovery immaterial in case of conspiracy: ASG Singh
Controverting the submission made by Advocate Kashiff, the ASG stated that in a conspiracy, it is not necessary that commercial or intermediate quantity needs to be recovered.
“It is also not necessary that all 10 ‘must-have knowledge’ of what the others have done,” he added.
Illicit drug trafficking affecting the nation: ASG Singh
The ASG submitted that drug trafficking is a very serious concern in society and is affecting the entire nation.
“Day in and day out youngsters consume drugs at rave parties. It is affecting the nation. It is not consumption by 1 or 2 persons but we are concerned with the entire chain.“
He added that all the applicant-accused claim that they were invited to the party. However, no more details are given.
“We are contending that this is not a case where someone says I am just an invitee or a consumer. We have applied section 29. That is a conspiracy, which means all are connected. There is the communication of Arbaaz with peddlers.
In the WhatsApp chat there is a specific reference to bulk quantity. That can’t be for one’s own consumption! There is a chat with a foreign national. If the chats are seen minutely, then your honor will understand why we are saying further investigation is required.“